Sunday, January 8, 2017


The BBC described the recent shooting in the Fort Lauderdale airport as “the latest in a series of mass shootings in the US in recent years,carried out by people who had easy access to weapons under US gun laws,”  demonstrating that they completely missed the real issue, which is not gun control but people control.

Esteban Santiago had mental problems. He was hearing voices and thought he was the subject of mind control by a US intelligence agency. He went to the FBI for help. They took his gun away and sent him for mental health evaluation. He got a “clean bill of [mental] health,” was released from custody, and was given his gun back. CNN senior law enforcement analyst Tom Fuentes explains this mind-boggling series of events by saying "He hadn't been adjudicated a felon and he hadn't been adjudicated mentally ill." Santiago’s family says his “mind was not right.” I’m going to go with Santiago’s family on this call.

Ironically, on the issue of whether someone should be confined in a mental institution, the courts of our land are not concerned about whether a person is merely "mentally ill." Before someone can be confined, that person has to be "mentally ill" AND dangerous; and in this area the courts have a very restrictive definition of what is dangerous.

Based on the few known facts, Santiago was mentally ill, but he was not mentally ill to the point that he could be confined in a mental health facility. How could this happen? I wrote about this issue some years ago in a blog post which discussed O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975), in which the US Supreme Court ruled that you couldn’t confine a mentally ill person in a treatment facility unless the person was likely to harm himself or others. This led to a vicious cycle that I saw repeated time and again when I was a prosecutor—(1) a mentally ill person would get off his medication, decompensate, and act out violently; (2) he would be briefly confined and gotten back on his meds; (3) the doctors would proclaim that he was no longer likely to harm himself or others, and he would be let out; (4) the three-step cycle would repeat again and again.

We once had an arsonist who kept setting buildings on fire. He would get arrested and jailed. The psychiatrists would proclaim him incompetent, and the charges would go away. The psychiatrists would say he was unlikely to harm himself or others, and the judge would be unable to confine him in a mental health facility. He would set something else on fire. The process would repeat itself.  

The US Supreme Court needs to revisit the issue of confining the mentally ill. They need to adopt a more expansive interpretation of “likely to harm himself or others”—one which at a bare minimum includes “likely to harm himself or others if he gets off his medication.” If they think confinement is too severe, then perhaps they would approve some sort of supervision similar to probation or community control for people who are “not likely to harm themselves or others so long as they stay on their medication.” If, when Santiago went to the FBI, he had been committed to a mental health facility for an extended stay, then the Fort Lauderdale tragedy would not have happened. If Santiago had been on some sort of outpatient supervision similar to community control or probation, the Fort Lauderdale tragedy might very well have been averted.